Reply Brief of Petitioners

    No. 83-1070

In the Supreme Court of the United States
October Term, 1983

MEMPHIS POLICE DEPARTMENT, et al.,
Petitioners,

vs.
CLEAMTEE GARNER, et al., 

Respondents.

O n  W r it  of C ertiorari to th e  U nited  S tates  C ourt 
OF A ppeals for th e  S ix t h  C ircu it

REPLY BRIEF OF PETITIONERS

H enry  L. K l e in  
Staff Attorney
Attorney of Record for Petitioners 
1500 First Tenn. Bank Bldg. 
Memphis, Tennessee 38103 
(901) 523-2363

C lifford D. P ierce , Jr.
City Attorney

C harles V. H o lm e s  
Senior Assistant City Attorney 

P a u l  F. G o o d m a n

Assistant City Attorney 
A rthur J. S hea  

Deputy City Attorney 
314 -125 N. Mid-America Mall 
Memphis, Tennessee 38103 
(901) 528-2614 

Attorneys for Petitioners

E. L. M endenhall, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030





TABLE OF CONTENTS

Introduction ......................................................................  1

Argument—
Memphis’ Shooting Policy As It Relates to the

State Deadly Force Statute ................................. 1
Respondent Ignores the Seriousness of Burglary .... 5

Conclusion .........................................................................  9

TABLE OF AUTHORITIES

Cases

Brown v. State, 684 P.2d 874 (Alaska App. 1984) .... 6
Bullington v. Missouri, 451 U.S. 430 (1981) ..............  8
Bundy v. State of Florida, No. 57,772 (Fla. S.Ct., filed

June 2, 1984) ..................................................................  7
California v. Pry sock, 453 U.S. 355 (1981) .................. 8
Garner v. Memphis Police Dept., 710 F.2d 240 (6th 

Cir. 1983), rehearing and rehearing en hanc denied .... 1, 2 
Gregg v. Georgia, 428 U.S. 153 (1976), rehearing de­

nied, 429 U.S. 875 ......................................................... 4
Griffin v. Warden, 517 F.2d 756 (4th Cir. 1975) ....... 6
Grudt V. City of Los Angeles, 86 Cal. Reptr. 465, 468

P.2d 825 (Cal. 1970) .....................................................  4
Guyton v. Phillips, 532 F.Supp. 1154 (N.D. Cal. 1981) 4
McDonald v. United States, 335 U.S. 451 (1948) ....... 8
People V. Manson, 61 Cal. App. 3d 102, 132 Cal. Reptr.

265 (1976), as modified on denial of rehearing, ap­
peal denied...................................................................... 7

People V. Salerno, 235 N.Y.S.2d 879 (N.Y. Sup. Ct. 
1962) ...............................................................................  6



II

Proffitt V. Florida, 428 U.S. 242 (1976) ...................... 8
Reman v. State, 70 Tenn. 720 (Tenn. 1879) ..............  5
Rummel v. Estelle, 445 U.S. 263 (1980) .........................  6
Solem V. Helm, ....... U.S......... , 103 S.Ct. 3001 (1983) 6

Statutes

Tennessee Code Annotated §40-7-808 .........................  1,2

Other

T. Capote, In Cold Blood (1966) ....................................  7



INTRODUCTION

In reply to the Brief filed on behalf of the Respondent, 
Petitioners decline to respond to each of the inaccuracies 
in the Brief for Appellee-Respondent regarding the factual 
findings; suffice it to say that the Petitioners adopt the 
factual findings of the trial judge (Petition A 1-9) and, 
for purpose of the argument herein, the summary of facts 
as stated by the Sixth Circuit Court of Appeals in their 
holding in Garner v. Memphis Police Dept., 710 F.2d 240, 
241 (6th Cir. 1983), rehearing and rehearing en hanc denied 
(Petition A 41).

Additionally, Petitioners firmly believe that Respon­
dent’s Brief goes far astray from what Petitioners believe 
this case concerns. Much of his discussion is apparently 
directed toward a finding that as a matter of law the 
Deadly Force Policy of the City of Memphis Police De­
partment was racially discriminatory or that Officer 
Hymon failed to exhaust all reasonable means of appre­
hension before he fired at young Garner. These issues in 
no way relate to the real question presented to this Court 
concerning the use of deadly force in this case pursuant to 
the Deadly Force Policy of the Memphis Police Depart­
ment.

ARGUMENT

Memphis’ Shooting Policy As It Relates to the 
State Deadly Force Statute

In deciding this case, the Sixth Circuit Court of Ap­
peals considered the principal question to be the con­
stitutionality vel non of Tennessee’s fleeing felon statute, 
Tenn. Code Ann. §40-7-808. Because of the fact that this 
statute is merely a codification of the common law deadly 
force doctrine, the court, in analyzing its constitutionality, 
looked at the history of the common law rule, including its 
origin, development and current status. In so doing, the 
court held the Tennessee statute violated the Fburth and



Fourteenth Amendments to the United States Constitution, 
stating:

Tennessee law authorizing the use of deadly force 
against all fleeing felons is at odds with the purpose 
and function of the common law principle because 
there are now hundreds of state and federal felonies 
that range all the way from violations of tax, securities 
and anti-trust laws and possession of stolen or fraud­
ulently obtained property to murder and crimes of 
terror. A state statute or rule that makes no distinc­
tions based on the type of offense or the risk of danger 
to the community is inherently suspect because it per­
mits an unnecessarily severe and excessive police re­
sponse that is out of proportion to the danger to the 
community.

Gamer, supra, 710 F.2d at 244 (Petition A 48).

Having decided that the statute and, therefore, the 
common law doctrine were unconstitutional, the court, 
without any further analysis, adopted the deadly force 
rule enunciated by the American Law Institute in the 
Model Penal Code as the constitutional minimum for such 
shooting policies. It is the position of the Petitioners herein 
that, if in fact the proliferation of crimes designated as 
felonies is responsible for the criticism of the common law 
doctrine, the Sixth Circuit went too far in designating the 
Model Penal Code as the minimum constitutional stan­
dard. After holding Tenn. Code Ann. §40-7-808 to be un­
constitutional, the court failed to discuss or analyze the 
significant question herein—where to draw the line in draft­
ing a constitutional shooting policy or statute.

Despite the fact that the court determined Tenn. Code 
Ann. §40-7-808 to be unconstitutional on the basis that the 
statute made no distinction as to the type of felony com- 
mited or the risk of danger it presented to the community, 
it either ignored or failed to consider the fact that the



shooting policy of the Police Department at the time this 
shooting took place did not allow the use of deadly force 
against all fleeing felons, as might the state statute. The 
shooting policy of the Memphis Police Department at 
that time stated:

Deadly Force.
DEADLY FORCE may be used in the following cir­
cumstances only after all other reasonable means to 
apprehend or otherwise prevent the offense have been 
exhausted:
(a) Self-Defense.

An officer may use DEADLY FORCE when it is in 
the defense of himself or another from serious 
bodily injury or death and the threat of serious 
bodily injury or death is real and immediate.

(b) Felonies Involving the Use or Threatened Use of 
Physical Force.
An officer may use DEADLY FORCE when the 
offense involves a felony and the suspect uses or 
attempts to use or threatens the use of physical 
force against any person.

(c) Other Felonies Where Deadly Force is Authorized.
After all reasonable means of preventing or appre­
hending a suspect have been exhausted, DEADLY 
FORCE is authorized in the following crimes.
(a) kidnapping,
(b) murder in the first or second degree,
(c) manslaughter,
(d) arson (including the use of fire bombs),
(e) rape,
(f) assault and battery with intent to carnally know 

a child under 12 years of age,



(g) assault and battery with intent to commit rape,
(h) burglary in the first, second or third degree,
(i) assault to commit murder in the first or second 

degree,
(j) assault to commit voluntary manslaughter,
(k) armed and simple robbery. (J.A. 140)

The above shooting policy specifically names offenses which 
the department considers violent or dangerous felonies. 
It, therefore, is much more restrictive than the state stat­
ute involved herein and, as used in this case to apprehend 
a fleeing first-degree burglary suspect, raises a more dif­
ficult question as to its constitutionality. The Sixth Cir­
cuit gave no discussion as to why this shooting policy 
or a shooting authorized by its provisions would be uncon­
stitutional.^ Instead, acting as legislators, the Court of 
Appeals adopted the Model Penal Code rule, which would 
bar the shooting of a burglary suspect unless there was 
reason to believe the suspect had caused injury to another 
or posed a threat of injury, for example by being armed. 
Petitioners urge that this rule is too restrictive and not 
required by the Fourth and Fourteenth Amendments; 
further, that if such should become the law of Tennessee, 
it should be accomplished by act of the Legislature, not by 
judicial decree. See Gregg v. Georgia, 428 U.S. 153, 186 
(1976), rehearing denied, 429 U.S. 875, in which the Court 
declined to hold that capital punishment violates the

1. The Sixth Circuit gave scant consideration to the fact that 
the City of Memphis’ shooting policy in 1974 actually struck a 
middle ground between the Model Penal Code rule and a rule 
which ostensibly would permit the shooting of any fleeing felon. 
Other courts have found such policies, particularly if narrower 
than the state law, to be appropriate considerations in determining 
the reasonableness of an officer’s actions, i.e. whether or not the 
qualified immunity exists. See e.g. Guyton v. Phillips, 532 F. 
Supp. 1154, 1162-63 (N.D. Cal. 1981); Grudt v. City of Los An­
geles, B6 Cal. Reptr. 465, 468 P.2d 825 (Cal. 1970).



Eighth Amendment, deferring the ultimate question of 
whether a state should prohibit such punishment to the 
state legislatures.

The City of Memphis’ shooting policy as it existed at 
the time of this shooting is little different from the Model 
Penal Code’s, except that among the listed felonies which 
may result in shooting of a suspect are burglary, robbery, 
and arson. The Model Penal Code does not authorize the 
use of deadly force against a fleeing suspect for one of 
those crimes unless force or violence to person is also 
suspected. It is the position of Petitioners that inclusion 
of those crimes is justified because those crimes should 
be considered to be inherently dangerous to life and pos­
ing a danger to the public. The holding of the Sixth Cir­
cuit adopting the Model Penal Code standard gives too 
much consideration to the rights of criminals and insuf­
ficient consideration to the rights of victims and of the 
public in general.

Respondent Ignores the Seriousness of Burglary

Petitioners agree that not all felony suspects would 
endanger life if they are allowed to escape. Indeed, as 
early as 1879 the Tennessee Supreme Court expressed 
reservations about the extent of the fleeing felon rule and 
suggested that perhaps the rule should be modified “in re­
spect to the lower grade of felonies, . . . whether as to these 
even escape would not be better than to take life.” Re- 
neau v. State, 70 Tenn. 720, 721-22 (1879), Additionally, 
Petitioners do not take issue with the statement by Amici 
that “the police as well as the public will benefit from 
standards that are more carefully tailored than the Ten­
nessee statute’s.” (Brief of Amici Curiae, page 23). As 
was true of the Memphis Police Department, most police 
departments have promulgated more narrowly drafted 
guidelines than contained in their state statute, even in 
states that recognize the common law fleeing felon rule.



6

Acknowledging this, however, Petitioners do not waiver 
from their view that burglary should be considered a crime 
inherently dangerous to life, such that its inclusion in 
Memphis’ shooting policy is not only defensible but logical 
and correct.

Petitioners urge that the Model Penal Code view 
adopted by some state legislatures and, now, the Sixth 
Circuit gives too much deference to the rights of crim­
inals to the exclusion of rights of victims and the public. 
The assumption of those adherents is that burglary, with­
out more, is merely a property crime and should not be 
considered dangerous or violent. This view disregards 
the realities of crime in contemporary society, especially in 
urban areas, and puts blinders on to the gravity of bur­
glary, especially residential burglary.

Burglary should be considered a serious crime, involv­
ing a high degree of danger to the public, in which it is 
not unreasonable to suspect that a perpetrator is armed. 
See Brown v. State, 684 P.2d 874, 879 (Alaska App. 1984); 
People V. Salerno, 235 N.Y.S.2d 879, 884 (N.Y. Sup. Ct. 
1962). In Griffin v. Warden, 517 F.2d 756, 757 (4th Cir. 
1975), the court held that imposition of a life sentence, 
under a habitual offender statute, against the perpetrator 
of a grand larceny who had two prior burglary convictions 
did not violate the Eighth Amendment, as burglary and 
grand larceny were “serious offenses that clearly involve 
the potentiality of violence and danger to life as well as 
property.”^

2. Griffin was noted by Justice Powell in his dissent in Rum- 
mel V. Estelle, 445 U.S. 263, 305-306 (1980), to show that lower 
courts were applying the Eighth Amendment only to overturn 
grossly disproportionate sentences and were thereby appropriately 
exercising a “high degree of sensitivity to principles of federalism 
and state autonomy.” Justice Powell’s opinion for the majority 
in Solem v. Helm, ........ U.S........... , 103 S.Ct. 3001 (1983), in re­
versing a habitual offender sentence as disproportunate to the 
crime and violative of the Eighth Amendment, does not indicate 
disapprobation of the holding in Griffin.



We are all aware of burglaries that have resulted 
in devastating injury or senseless death to innocent victims, 
many of which involve the commission of brutal sex crimes 
or other atrocities. In Tallahassee a suspected mass mur­
derer broke into a dormitory of a college sorority and sex­
ually assaulted and killed two young women.^

The Manson family murders in California"  ̂ and the 
murders of a family of four in Kansas® each occurred dur­
ing the perpetration of a nighttime breaking and entering 
of a residence. In many such instances, next door neigh­
bors, even those in the next room, were unaware of what 
was taking place. How reasonable is it then to require 
that an officer have probable cause to know what acts 
have taken place before he can discharge his firearm to 
apprehend a fleeing burglary suspect?

The crimes above described started with the breaking 
and entering of a dwelling house at nighttime with the in­
tent to commit a felony. It is unrealistic to think that an 
officer who might be called to the scene of such a tragedy 
would know whether the burglary suspect is merely a 
thief or is in addition thereto a rapist or murderer. Bur­
glars almost by definition operate by stealth, breaking and 
entering when residents are most defenseless and least 
prepared to prevent a sudden attack. Even the burglar 
who does not intend physical harm runs the tremendous 
risk of a surprise encounter with inhabitants and result­
ing potential for violence. Although statistics are in­
exact as to what percentage of burglars are armed, it is 
not unreasonable to infer that many burglars, being aware

3. Bundy v. State of Florida, No. 57,772 (Fla. S.Ct., filed 
June 21, 1984).

4. See People v. Manson, 61 Cal. App. 3d 102, 123-33, 132 
Cal. Reptr. 265, 274-81 (1976), as modified on denial of rehearing, 
appeal denied.

5. T. Capote, In Cold Blood (1966).



8

of the possibility that residents are armed, carry weapons.® 
Even the breaking and entering of a commercial establish­
ment creates an unreasonable risk of harm, as many busi­
nesses now maintain security guards on their premises or 
have their property regularly patrolled, increasing the likeli­
hood of a violent encounter between burglar and watch­
man. The Sixth Circuit ignores the fact that it is the bur­
glar, with his reckless disregard for the well-being of 
others, who creates the explosive situation that in the par­
ticular occasion resulted in death. Truly, this can be said 
to be a risk assumed by such a malefactor.

The Sixth Circuit rule is unreasonable in the demands 
it places upon law enforcement officers and is evasive of 
any consideration of the public interest. Petitioners are 
very much aware of the seeming harshness of the shoot­
ing policy that in this instance resulted in the death of a 
15-year-old who was fleeing with a small amount of money 
and jewelry from premises that turned out to have been 
temporarily uninhabited. However, the same facts as were 
presented to Officer Hymon could just as likely have re­
sulted in the shooting of a suspect fleeing from a murder, 
rape, or other violent crime."̂  If young Gamer had been 
fleeing from some heinous assault on residents, the Sixth 
Circuit rule would prohibit shooting to apprehend the 
suspect unless the officer either saw a weapon or had 
reason to suspect that violence had been done. It is unclear 
what objective criteria would be demanded of the officer

6. In McDonald v. United States, 335 U.S. 451, 460 (1948), 
in disapproving the action of officers who surreptitiously entered 
a house without a warrant. Justice Jackson noted that it was 
fortunate that violence had not resulted, as “many homeowners 
in this crime-beset city doubtless are armed.” Justice Jackson’s 
comment, of course, is even more appropriate today.

7. Several recent Supreme Court decisions involved crim­
inals convicted of burglary which resulted in murder. See Cali­
fornia V. Prysock, 453 U.S. 355 (1981); Bullington v. Missouri, 451 
U.S. 430 (1981); Proffitt v. Florida, 428 U.S. 242 (1976).



by the Sixth Circuit rule before the officer can shoot— 
would the sound of gunfire or screams from inside the 
building be sufficient? or blood visible on the suspect?

The result of the Sixth Circuit rule will be to bar 
almost all such shootings to apprehend fleeing dangerous 
criminals; the lack of clarity of the rule will result in 
the refusal of officers to use their weapons unless it be 
in self-defense or in defense of others. This will of neces­
sity result in the tragic converse of the unfortunate result 
herein—criminals fleeing from assaults and atrocities of 
all sorts, possibly including one of the mindless massacres 
that have become all too common in recent years, will be 
allowed to escape unless the officers win a foot-race. The 
perpetrator of the deadliest of crimes will soon learn that 
his salvation may lie in fleeing without a weapon, hoping 
that the officer is unaware of whatever horrible crime may 
have occurred, and attempting to outrun the officer. To 
adopt a rule that places such a high value on the life of 
a criminal, that so ignores the public safety, and that 
places such stringent limitations on the already constrained 
resources of law enforcement is to turn the Constitution 
on its head.

CONCLUSION

The objections of Petitioners to the Model Penal Code 
standard are aimed at its blanket prohibition of the use of 
deadly force against suspects in felonies, such as burglary, 
robbery, and arson, which should be considered per se 
dangerous to life and which are undertaken with reckless 
disregard for the safety of others and indeed of the per­
petrator himself. Should the Tennessee Legislature recon­
sider its Deadly Force Statute, Petitioners would hope



10

and urge that it not go so far as the Sixth Circuit has 
done. Yet Petitioners recognize that the Legislature in 
its wisdom has the authority to further limit or define 
the rule. If Tennessee were to adopt a statute which is 
narrower than Memphis’ shooting policy, Petitioners would 
necessarily be constrained to further modify their already 
restrictive shooting policy. Petitioners urge the court that, 
if the well-established rule that allows the shooting of a 
burglary suspect after all reasonable means of apprehension 
have been exhausted is to be overturned or modified, any 
such reversal or modification should come from action of 
the legislature and not be effectuated by judicial fiat, as 
has been done by the Sixth Circuit herein.

Respectfully submitted,
H e n r y  L. K l e in  

Staff Attorney
Attorney of Record for Petitioners 
1500 First Tenn. Bank Bldg.
Memphis, Tennessee 38103 
(901) 523-2363

C lifford  D. P ierce , Jr.
City Attorney 

C harles V. H o l m e s  
Senior Assistant City Attorney 

P a u l  F. G o o d m a n  
Assistant City Attorney 

A rthur  J. S h ea  
Deputy City Attorney 
314 -125 N. Mid-America Mall 
Memphis, Tennessee 38103 
(901) 528-2614 

Attorneys for Petitioners



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